If you are a green card holder (a lawful permanent resident) interested in applying for naturalized U.S. citizenship, you probably know that a crime on your record might bar your approval. That's because, in order to qualify for naturalization, the law requires you to show that you have resided in the U.S. for a specific period of time and that, for all of that time period, you have been and continue to be "a person of good moral character." We call that the "GMC period." (See I.N.A. § 316(a).)
Your GMC period is based on how long the law requires you to reside in the U.S. to qualify for naturalization. For most people, it's five years. For people married to and living with U.S. citizens, it's three years. A few other exceptions exist.
If you are convicted of breaking the law during the GMC period (even a traffic ticket counts as a conviction if you had to pay a fine), U.S. Citizenship and Immigration Services (USCIS) will consider that conviction in deciding whether you have proven your good moral character.
Because of the GMC requirement, if you have pled guilty or been convicted of breaking the law, your best option is often to wait until it has been more than five years (or whichever GMC period applies to you) since your arrest to apply, rather than taking a chance on applying sooner and being denied.
But does that mean that waiting five years is always best? Will it always work? This article will discuss these issues.
If you have ever had to pay a fine to a court, or if you were given a ticket that you paid, it's a safe bet that you have been convicted of breaking the law.
Because a conviction for breaking the law can range from a ticket for jaywalking (crossing a street outside of a crosswalk) to murder, it helps to break convictions into five different classes in order to understand GMC. These are:
Before discussing these classes of convictions, let's first address a practical question.
When you apply for naturalization, USCIS will run your fingerprints and name(s) through every database imaginable—federal, state, international, and local.
This is why it's so important to include every name (and every variation of your name) that you have ever used on the first page of the N-400 application. If you leave off a name, or fail to include your middle name or all your surnames, this can slow down approval of your application, because those name checks cannot be completed before your interview.
USCIS will also require a certified copy of ALL your criminal convictions (ever) and proof that you have complied completely with all fines, probationary periods, and so forth. If you are still on probation or have not completely paid a fine, you will not qualify to naturalize. This includes any traffic tickets, although USCIS doesn't always require court records for traffic tickets.
The most serious crimes, such as murder and other aggravated felonies, will automatically and permanently bar a person from being considered to have good moral character. (See Crimes That Will Prevent You From Receiving U.S. Citizenship. If you have one of these on your record you will never qualify for U.S. citizenship, no matter how long you wait.
Other convictions will not be permanent bars to good moral character, but they do make you deportable. Here again, waiting for time to pass won't make that fact go away. Some of these crimes might seem quite minor—for example, a conviction for violating a protective order can result in your deportation from the United States.
If you apply for naturalization with a deportable conviction on your record—regardless of how much time has passed—USCIS may place you in removal proceedings. Most domestic violence convictions, including protective order violations, and nearly all convictions related to firearms and drugs, can make you deportable. (See Crimes That Will Make an Immigrant Deportable.)
If you have a conviction on your record that makes you deportable, then regardless of how much time has passed, if you apply to naturalize, USCIS may decide, instead of granting your citizenship application, to begin removal proceedings against you.
But it's also important to understand that even if you are deportable, you can still have good moral character if you have no convictions during the GMC period. In these cases, USCIS can choose to exercise what lawyers call "prosecutorial discretion." That means USCIS can decide not to begin removal proceedings, and instead approve your application for naturalization.
Because asking USCIS to exercise prosecutorial discretion is difficult, if you have a deportable offense on your record, you should never apply for naturalization without consulting an attorney first.
There are many crimes that are not permanent bars to naturalization, and don't make you deportable, but that USCIS will still find are evidence of bad moral character. If you have a conviction for shoplifting, for example, and you apply for naturalization without waiting until your arrest is outside the GMC period, it is 100% guaranteed that your application will be denied.
Currently, any remotely serious conviction (DUI, battery, criminal damage to property, negligent care of a child, and so on) will likely cause USCIS to deny your application for lack of GMC.
In the past, if a crime required a knowing and intentional choice to break the law, it was automatically proof of bad moral character, while other crimes were treated more leniently under U.S. immigration law. More recently, however, USCIS has found convictions to be evidence of bad moral character even when a "knowing and intentional choice to break the law" was not required for the criminal conviction.
The single most common violation of the law in the U.S. is speeding. The N-400 application for naturalization requires you to list any and all arrests, citations, detentions, charges, and convictions, for any crime or offense—including traffic tickets.
Fortunately, according to courts that have interpreted U.S. immigration law, you don't have to be perfect to be found to be of good moral character. So if your only conviction during the GMC period is for speeding, you should still be able to naturalize. Other minor traffic tickets will also normally not be considered a violation of good moral character.
But because USCIS has the discretion to decide what is a violation of good moral character, even a parking ticket can be a violation of good moral character if you have many of them.
If you have more than one criminal conviction, even if one or more of them are minor, your case is more complicated. There are two primary reasons for this. The first is that even a minor violation during the GMC period allows USCIS to consider your entire record, not just the GMC period.
Say you had a DUI conviction six years ago. You had no arrests or problems for four years, but last year you pled guilty to fishing without a license. By itself, one minor offense within the GMC period normally won't cause USCIS to find that you are of bad moral character.
But what it does do is make it possible for your examiner to look at your record outside the GMC period—that is, further back in time than the typically required five years—to see whether you have a pattern of bad moral character. Even though your DUI conviction happened more than five years ago, the examiner will also consider it in deciding whether you have demonstrated good moral character. At the very least, your examiner will want to know whether you were drinking when you were charged with fishing without a license; if so, the examiner may decide that you have a pattern of not respecting the law.
On the other hand, if you were not drinking, or if you got a speeding ticket instead of a ticket for fishing without a license, the immigration officer has the discretion to decide that this single conviction doesn't mean you lack good moral character, and approve your case.
The second reason that multiple convictions, even minor ones, can lead to a finding that you lack GMC is where those convictions show a pattern of disregard for the law. For instance, if you have several speeding tickets in the same year, or three or four speeding tickets every year for two or three years, or two tickets for driving without insurance, the USCIS examiner may conclude that you didn't learn your lesson the first or even the second time, and that you don't respect and obey the law.
USCIS tends to reserve this type of finding for the most egregious scofflaws, and usually even four or five traffic tickets during a five-year GMC period will not cause your application to be denied
It can be difficult to predict when one or more minor convictions within the GMC period will result in an naturalization application being denied. There are no absolute rules—the law gives USCIS discretion to decide whether or not you have proven that you have good moral character.
"Discretion" means that USCIS and its officers can make up their own minds. USCIS trains its officers to weigh all factors, good and bad. But discretion means that all sorts of considerations can affect the decision. Remember, even one conviction during the GMC period will allow the examiner to consider your entire record, both during and before the GMC period.
"Discretion" also means that where USCIS draws the line between convictions that are automatically evidence of bad moral character and convictions that are not is subject to change, as society changes. For example, 30 or 40 years ago, a DUI would not have been a serious conviction for GMC purposes. Now it is.
Today, a minor conviction might be a speeding ticket, a child-restraint violation, driving without insurance, fishing without a license, or creating a nuisance on your property. But maybe in 20 years, if society becomes convinced that only negligent parents would fail to properly secure their children in a car, a child restraint violation will become evidence of bad moral character.
If you do not want any risk that your naturalization application might be denied, or if you don't want the immigration officer to consider any of your convictions, you will need to be conviction-free for the entire GMC period, and you will need to make sure you haven't committed a crime that might make you deportable. That can mean waiting five years from the date of your last arrest before submitting your application for U.S. citizenship—or not applying at all.
On the other hand, that doesn't mean no one should apply within five years of a crime. To make a personal decision as to whether the risk of denial is worth the effort of applying, consult an experienced immigration attorney.